May 2011
THE EU-RUSSIA CENTRE REVIEW
Telephone Justice in Russia
Issue Eighteen
CONTENTS
Foreword
Marie Mendras, Research Fellow at the CNRS
and the Centre d‘Etudes et de Recherches Internationales (Paris)
3
Telephone Justice in Russia: an Update
Alena Ledeneva, Professor in Politics and Society, School of Slavonic
and East European Studies, University College London
4
2
In memory of Arkady Vaksberg (1927-2011), who died on 8 May this year.
A leading Russian historian, writer and journalist,
Vaksberg’s biographies of Alexandra Kollontai, Maxim Gorky, and
Andrei Vyshinsky “Stalin’s Prosecutor”, and his analytical works (The Soviet mafia, Hotel Lux,
Le laboratoire des poisons), remain of exceptional interest.
Foreword
This second survey and report about ―telephone justice‖ in Russia is very timely. Recent
developments confirm that most defendants whose cases are of political or financial significance
for those groups in power in today‘s Russia cannot be assured of an impartial investigation and a
fair trial. The author compares recent data with a similar survey conducted in 2007 and reaches
the conclusion that not much has changed in the eyes of a distrustful Russian public.
On the basis of her own research and a poll conducted by the Levada Centre Alena Ledeneva
analyses the way the average Russian perceives the judicial system. A majority of respondents
believe that judges operate under the supervision of the administration and powerful networks.
Those who have had personal dealings with the judicial system hold even more critical views.
Russian perceptions have hardly changed in the last three to four years, notes Ledeneva, and why
should they, if the reality remains the same?
Dmitry Medvedev‘s presidency raised hopes that the courts might become more honest but he has
fallen short of expectations. The president spoke of the need to fight ―legal nihilism‖ but has
achieved nothing of real significance. Worse still, Medvedev‘s rhetoric contrasts with his inability to
act and this tells Russian citizens that he is a weak president. His open denunciation of the dismal
state of the judiciary suggests a disquieting hypothesis. Perhaps Medvedev is able to talk about the
rule of law precisely because it is not of primary importance in the system of rule established by
Putin.
The new survey shows that Russian perceptions of the courts are not far off the conclusions of
leading experts such as Bill Bowring. Not all judges are subservient and easily corruptible, and
some courts work better today. The powers that be take no risks, however, when their own interests
are at stake. The recent trial of Mikhail Khodorkovsky and Platon Lebedev and their conviction on
27 December 2010 and rejection of the appeal on 24 May 2011 is a case in point.
Professor Ledeneva emphasises what she sees as the most troubling observation in her study:
Russian citizens are poorly informed about the law and the court system, and do not show much
interest in obtaining more reliable information. As long as this indifference prevails, not much
progress may be expected in the sphere of public politics. The upcoming elections to the Duma in
December 2011 and the presidential elections in March 2012 stand out as major tests.
Marie Mendras
Professor at Sciences Po, Research Fellow at the CNRS and the Centre d’Etudes et de Recherches
Internationales (Paris), and a member of the EU-Russia Centre’s Advisory Board
3
Telephone Justice in Russia: an Update
by
Alena Ledeneva1
This report continues our investigation into the predicament of the Russian legal system when
faced by ‗telephone justice‘ (telefonnoye pravo), various types of informal influence and pressure
on the judiciary. The data were obtained from a nationwide survey conducted jointly in 2010 by the
author, the Levada Research Centre and the EU-Russia Centre. Those findings were complemented
by in-depth interviews with experts. The questions of the 2010 Survey repeat those asked in 2007
(Ledeneva 2008) in a survey aimed at monitoring public perceptions of ‗telephone justice‘.
In political terms the two surveys reflect the changes associated with the presidency of Dmitry
Medvedev, elected in March 2008. The first survey was conducted in June 2007, well before
Medvedev‘s nomination as a presidential candidate, and was representative of Putin‘s Russia. The
2010 Survey was conducted in November, a month before the end of Mikhail Khodorkovsky‘s
second trial and his new 13-year-sentence,2 and a short while before the sensation caused by the
revelations of Natalya Vasilyeva, press aide to the trial Judge Viktor Danilkin. In stating that this
particular ‗emperor has no clothes‘ Vasilyeva provided a predictable yet still shocking insider
account of the ‗atmosphere‘ surrounding the trial.3 The three years separating the surveys thus
coincided with a period of hope.
In chronological order, the following developments shaped high expectations. One, a political will to
address the issue of judicial independence emerged. Dmitry Medvedev, himself a lawyer, famously
criticised Russia‘s ―legal nihilism‖ during his election campaign and after becoming president he
continued to focus his efforts on issues surrounding the independence of the judiciary. Two, the
need for an independent judiciary became part of the wider agenda of modernization, aimed at
improving the climate for domestic businesses and foreign investors, as well as targeting social
aspects of modernization. Three, a succession of public scandals in Moscow provided an
1
Professor in Politics and Society, School of Slavonic and East European Studies, University College London. The
2010 Survey was conducted with financial support from the EU-Russia Centre; the 2007 Survey was part of the
British Academy Research Grant SG-43818. I am grateful to Costanza Curro and Piotr Drozd, my postgraduate
students, who generously contributed their expertise and enthusiasm to the preparation of this report, including
help with the data analysis, formatting, graphics, and copy-editing.
2
Having been sentenced to 14 years and having served 7, Mikhail Khodorkovsky and Platon Lebedev will be jailed
for another 6 years.
3
See ‘Sensation: An Interview with Judge Danilkin’s Assistant,’ Gazeta.ru, hro.org, 14 February 2011. Go to
http://www.khodorkovskycenter.com/sites/khodorkovskycenter.com/files/Gazeta%20140211T.pdf for an English
translation of the interview in its entirety.
4
opportunity to launch investigations and to fire law-enforcement officials. In 2009 Russian lawyer
Sergei Magnitsky died in prison after being incarcerated for a year without charge for exposing
deep corruption at the Interior Ministry. Businesswoman Vera Trifonova, denied medical treatment
in a Moscow pre-trial detention centre, also died in custody in April 2010. Life-threatening and
grave assaults were made on journalists Mikhail Beketov in late 2008 and Oleg Kashin in
November 20104.
Four, signs of resistance and demands for change5 were communicated through personal appeals
to the President. Businessmen who found themselves subject to the aggressive attention of the tax
police6, and the likes of Alexei Dymovsky who was the first police officer to place his video appeal
on YouTube, tried to reach over the heads of intervening officials.7 Most influential of all, perhaps,
was the investigative blog of lawyer-activist Alexei Navalny who waged a personal campaign to
expose corruption.8 In October 2010 Navalny became ‗virtual Mayor of Moscow‘. In an Internet poll
that month, conducted jointly by the Kommersant and Vedomosti newspapers, Navalny took more
4
Mikhail Beketov, chief editor of “Khimkinskaya Pravda”, was beaten and left for dead in the Moscow suburb of
Khimki. Oleg Kashin, a journalist with the “Kommersant” daily, was brutally attacked not far from his home in the
city centre.
5
There has emerged a new form of civic action – bottom-up, Internet-coordinated, and legally informed. The most
pronounced, perhaps, was the campaign against the privileges of officialdom on the streets and roads. It was
organized by the Federation of Russian Automobilists (FAR) and the campaign slogan “Servant of the people, turn
off that flashing beacon” spread the movement across fifty cities. An independent poll conducted by the Levada
Centre found that 78 percent of the population expressed support for the campaign begun by FAR. See Alisa
Shtykina, “Grazhdane podderzhivaiut bor'bu s migalkami,” Kommersant. Daily,No. 77, April 30, 2010, page: 4,
http://dlib.eastview.com/browse/doc/21808531 Another Internet community called on its members to follow the
example of Moscow businessman Andrei Hartley who refused to give way to the car of presidential advisor
Vladimir Shevchenko. Supporters should use their mobile phones to film violations of traffic regulations by official
cars, they were told, and make them public on the Internet. See Aleksandr Kolesnichenko, Valerii Iakov, “Problesk
Pobedy
nad
migalkami”
Novye
izvestiia,
No.
77,
April
30,
2010, page(s):
4
http://dlib.eastview.com/browse/doc/21806809
6
Evgeny Chichvarkin made his Internet appeal to President Medvedev from London, naming 11 police officers and
two generals who were behind the corporate raiding on Evroset, of which he was co-owner. The investigation of
the related criminal cases was closed on 25 January 2011. Alexandr Lebedev published an open letter to Prime
Minister Putin in February 2011.
7
http://www.youtube.com/watch?v=R4vB2a15dOU .
8
Before becoming a “civic activist,” Navalny was a leading member of the Yabloko party. In 2007, under the
banner of their Democratic Alternative (Demokraticheskaya alternative) Movement (aka “DA!”), he and Masha
Gaidar held a debate in a Moscow bar that turned ugly. After a drunken group of United Russia youths disrupted
the event, Navalny confronted them outside on the street. When the thugs refused to leave, Navalny shot their
foolish leader twice with an air-pistol and ended up wrestling him on the ground. Nobody pressed charges but
Yabloko threw Navalny out of the party for “causing it political damage”. He has since acted as a consultant to the
Governor of the Kirov Region, Nikita Belykh. (A former member of the Union of Right Forces, Belykh is now
despised in liberal circles after abandoning the party and the Solidarity movement in late 2008 to take up the Kirov
appointment. Masha Gaidar, incidentally, followed Navalny there.)
5
than 45% of the overall vote.9 Finally, overwhelming evidence of the pressure exerted on judges
and the courts was made public by the judiciary itself.
In 2009 Vladimir Yaroslavtsev and Anatoly Kononov, two judges at the Constitutional Court, were
forced to resign because they had talked to foreign media. Their critique of the judiciary‘s inner
workings was as poignant as that of Judge Olga Kudeshkina, herself unfairly suspended five years
earlier by Moscow City Court Chairwoman Olga Yegorova. (Kudeshkina took her case to the
European Court of Human Rights and won.10) The First Deputy Chair of the Supreme Arbitration
Court of Russia, Elena Valyavina, testified in court that Valery Boyev, an official in the Presidential
Administration,11 had approached her with instructions on how to decide a high-profile case12. In
9
Writing for Grani.ru, political analyst Stanislav Belkovsky explained that Navalny’s victory symbolized the arrival
of a new generation of opposition politicians, who were both non-confrontational and effective. Navalny fell into a
new category of dissident, said Belkovsky: the “civic activist” (grazhdanskii aktivist), someone who seeks
concessions from the establishment and espouses an “ethical and aesthetic” opposition to the ruling system. This
new group of activists enjoys greater popularity, according to Belkovsky, because they are not pursuing political
careers and avoid radical, anti-establishment rhetoric. Kommersant described Navalny’s politics as ‘balanced’. He
did not praise FAR’s Sergei Kanaev, Konstantin Doroshok of Spravedlivost, or even Khimki forest activist Evgeniia
Chirikova. Instead, Navalny celebrated Democratic Choice (DemVybora), Vladimir Milov’s 200-member project,
which aims to participate in the 2011 parliamentary elections and the presidential elections next year. (Milov
created the group as a Solidarnost breakaway when that movement’s leadership refused to become a registered
political party.) The DemVybora plug comes as no surprise. Navalny apparently consults Milov about the energy
industry, which is presumably very valuable when building his lawsuits against energy monopolies. The heart of
Navalny’s current work is advocating minority shareholders’ rights. The strategy has been to buy shares of State
corporations and then demand (legally guaranteed) access to insider company information. He has filed lawsuits
against Surgutneftegaz, Transneft, Rosneft, Gazpromneft, TNK-BP and the VTB bank.
Source: http://www.agoodtreaty.com/2010/10/20/navalnyi-virtual-mayor-of-moscow/ .
10
ECtHR ruling No 29492/05 Kudeshkina v. Russia,26 February 2009. For details see Judge Olga B. Kudeshkina’s
speech, 1 March 2010, ‘Deeds not words: The present failings of judicial reform in Russia’
www.eu-russiacentre.org/eurc/judge-olga-kudeshkinas-speech.html .
11
Valery Boyev is an assistant in the personnel and State decorations department of the Presidential
Administration. The activities of the department were formerly supervised by presidential aide Viktor Ivanov who,
on 15 May 2008, was appointed Director of the RF Federal anti-Narcotics Trade Service. Boyev’s office was not in
itself particularly significant. However, he also represents the Presidential Administration on the Supreme
Qualification Board for Judges, which plays an important role in the appointment and dismissal of high-ranking
judges. Among its appointees are the chairpersons and deputy chairpersons of the Supreme Court and the
Supreme Arbitration Court, who are appointed by the Federation Council (the upper chamber of the Russian
parliament) on the recommendation of the President. In the case of a deputy chairperson of either Court the
presidential recommendation must be based on a proposal by the chairperson of the respective court. Whatever
the case, a positive opinion by the Board is legally required in order to confirm the appointment.
12
The case concerned the TogliattiAzot joint-stock company, the country’s greatest producer of ammonia. In 1996
a State share of 6.1% in the company capital was privatised (sold to a private company). In 2004 the Ministry of
Property Relations challenged the privatisation deal in an arbitration court, arguing that it had been in breach of
then-current law. After two lower-court decisions upholding the deal, the third-instance Arbitration court decided
the case in favor of the State agency. An appeal to the Supreme Arbitration Court followed. Valyavina took the
case because none of the other judges at the Court were willing to oversee the hearing because, apparently, they
were concerned about possible personal repercussions. Valyavina made certain preliminary decisions on the case,
in particular, lifting a preliminary injunction against convening a general meeting of TogliattiAzot shareholders.
6
the event of non-compliance he threatened her with career problems. Her statements constituted
the ‗overwhelming evidence‘ cited in extradition cases before London courts to illustrate the reality
of political pressure on the Russian judiciary.
Yet these developments, arguably, have not weakened the grip of the ―system‖ (sistema) on
economic and political actors, and that includes the President himself. A sharp critique of Putin‘s
sistema was provided in Mikhail Khodorkovsky‘s earlier publications and in his last words to
Moscow‘s Khamovnichesky district court on 2 November 2010. In particular he stressed how
important it was for the successful modernisation of Russia that the judiciary be made
independent of such unwritten instructions and commands (telephone justice) 13.
―Let's ask ourselves: What do entrepreneurs, high-ranking industrial managers or just
educated and creative people think today when they look at our trial and what, I assume,
will be its absolutely predictable result? The obvious conclusion of any rational person is
frightening in its simplicity. The security services can do anything. There is no right to
private property. Those who clash with the system have no rights whatsoever. Even though
rights are enshrined in law they are not defended in court, because the courts are either
afraid of the system or form a part of it. Can we be surprised that rational people do not
strive for self-fulfilment here, in Russia? Who then will modernize the economy? The
prosecutors? The police? The security service?‖
In these two surveys our purpose has been to monitor changes in popular perceptions, of
‗telephone justice‘ and of the independence of the judiciary, so as to complement other types of
analysis made of Russia‘s judicial system (Global Corruption Report 2007; Gorbuz, Krasnov,
Michina and Satarov 2010; Hendley 2007, 2010; Huskey 1992; Mishina and Krasnov 2006; Sakwa
2010; Satarov 2005; Solomon 2008; Trochev 2008; Volkov 2011).
HOW DO YOU UNDERSTAND ―TELEFONNOYE PRAVO‖?
The 2010 Survey was designed to collect data on popular perceptions of telephone justice and was
conducted by the Levada Centre, Russia‘s most respected survey institute. A nationwide, stratified
random sample of 1,593 adults (aged 18 and over) was interviewed at home between 19 and 22
November 2010, in both urban and rural areas of the Russian Federation. The sample did not
include temporary residents – people on business trips, for example, those taking vacations or
undergoing medical treatment, servicemen and women in the Russian, or people detained in prison
and the wider penitentiary system.. The sample was built on the basis of a multi-stage, stratified
selection of locations for interviewing, as described in detail on the Levada Centre website.14
To distinguish various contexts in which the term “telefonnoye pravo” is used today, and to create
an inclusive list of its possible meanings for our main survey question (―What is telefonnoye
13
14
Speech by Mikhail Khodorkovsky, www.khodorkovsky.ru , 2 November 2010.
See methodological reports and statistics of success rates of home visits at www.levada.ru.
7
pravo?‖), I conducted a content analysis of the national and regional press in Russia since 2000.
The source was the Eastview electronic database, which contains 65 national and 111 regional
publications.15 This helped us to assess, albeit impressionistically, what people might associate
with the term.
Table 1: Q. ―What, in your opinion, does 'telefonnoye pravo' mean?‖
Respondents were invited to make multiple choices
Responses (in decreasing order of frequency; responses in text thus [2])
2010
1. Hard to say
35
2. Court decisions made on orders ―from above" (sverkhu)
29
3. Pressure on judges / prosecutors by State officials (chinovniki)
20
4. Court decisions made ―as required and requested‖ (po zakazu)
14
5. Cases are opened and closed ―as required and requested‖ (po zakazu)
13
6. Pressure on judges / prosecutors by State security services (spetssluzhby)
10
7. Pressure on judges / prosecutors by criminal groups
9
8. Selective law enforcement: the opening and closing of cases
9
is influenced by the status of the opponent
9. Selective law enforcement:
by the status of the opponent
court
decisions
are
influenced 8
10. Pressure on judges by prosecutors
7
11. Right of the detained to make a phone call (or calls)
6
12. Legislation in the area of telephone communications, tariffs etc.
6
15
“The Universal Database of Regional Russian Newspapers (UDB-REG) provides close-up coverage of
developments throughout Russia's regions,” says its online description. “This database currently presents
newspapers from all seven Federal Districts of the Russian Federation and includes coverage of local issues in
Moscow and St. Petersburg. The database represents such noteworthy regions as the troubled Northern Caucasus
(Groznenskii rabochii from Chechnya, Severnaia Osetiia from Northern Osetiia-Alania, etc.), oil & gas rich Western
Siberia (Tiumenskie izvestiia, etc.), the investment-friendly Volga region (Nizhegorodskie novosti from Nizhny
Novgorod, Samarskie Izvestia from Samara), and many others. The selected newspapers have the largest
circulation
in
their
regions
and
are
considered
as
most
authoritative.”
See
http://dlib.eastview.com/sources/publications .
8
13. "Basmannoye-style‖ justice: the way the Khodorkovsky case was heard,
conducted and judged
2
14. Other
1
One example. I included a post-Soviet connotation of the term that has appeared in media
headlines concerning the introduction of tariffs for local calls (these were formerly covered by the
monthly line rental). Then there was a literal reading of the idiom to mean the ―right to make a
telephone call‖. These two usages were included in order to filter out those unsure about the term‘s
application but unwilling to acknowledge the fact (Vaksberg 1986, 2003). To avoid an artificial
inflation of certain answers the multiple choice options kept close to the phrases used in the
media. Respondents were likewise invited to choose as many prompts on the card as they needed
to define the term. The answers in Table 1 are organized in order of decreasing frequency.
More than one third of respondents (35%) found it ―hard to say‖ [1] what telefonnoye pravo
meant.16 This percentage has hardly changed since 2007 (34%), despite the growth (from 30 to
36%) in the proportion saying they had experience of dealing with the judicial system, either
personally or through family and friends. People who struggled to define the term tended to be
young (43% of those aged 18-24) or older than 55 (39%), and more often women (38%) than men
(32%). Younger respondents‘ choices tended to deviate significantly and most frequently from the
average: only 14% of the 18-24 age group, for example, chose ―pressure on judges / prosecutors by
State officials‖ [3] compared with 20% overall. With the exception of two test prompts (―legislation
in the area of telephone communications‖ [11] and the ―right of the detained to make a phone
call‖ [10]) the percentage of responses from the younger age group was significantly less in all
cases than that of other groups. These findings confirm that younger people are less familiar with a
practice that has its origins in the Soviet period.
The basic meaning of the term ―telephone justice‖ [2] was selected by 29% of respondents, making
it the most frequently chosen definition. It would be useful to identify the most stable clusters of
definitions for those selecting more than one prompt (an average of 1.7 responses per person). The
two thirds of respondents who did not find it ―hard to say‖ what the term meant, however, most
favoured the basic meaning of ―orders from above‖. Respondents identified other forms of pressure
[3], which do not necessarily come directly from above but are external to the judicial hierarchy
(e.g. pressure by State officials). These they associated with informal influence) or [3, 4] financial
inducements (zakaz). Interestingly, although the second Khodorkovsky trial was held in the period
between the two surveys, the percentage of respondents who associated ―telephone justice‖ with
‗Basmannoye‘ (now ‗Khamovnicheskoye)‘ justice [13], i.e. the way this case was heard, conducted
and judged, slightly decreased – from 4% in 2007 to 2% in 2010.
16
I have conducted a survey on blat (influence, connections) to compare perceptions of different informal
practices in Russia. In that survey people found it much less “hard to say” what was meant (9%) than in the
“telephone justice” survey (30%).
9
The data from another national survey recently showed that over a third (37%) of respondents
consider the Khodorkovsky-Lebedev case to be an example of ―pre-ordered‖ decision-making in
court but the number of people directly linking ―telephone justice‖ (telefonnoye pravo) to this case
was exiguous. Arguably, this figure would have been different if either Judge Olga Kudeshkina‘s
case or the Vasilyeva interview had been reported on national television. According to Radio Echo
Moskvy, however, only one TV channel reported an interview with Vasilyeva.
UNLAWFUL USE OF THE RUSSIAN COURTS
Table 2 shows that about a quarter of respondents (26%) also had difficulty in answering the
second main survey question, ―Do you think that the Russian judicial system has been used for
unlawful purposes in the last seven years?‖ Those who did volunteer judgments on the multiple
choices in this table produced a somewhat shocking result.
Table 2: Q. ―Do you think that the Russian judicial system has been used for unlawful purposes in
the last seven years?‖
Respondents were invited to make multiple choices
Responses (in decreasing order of frequency; responses in text thus [2] )
2007
2010
1. Hard to say
27
26
2. Yes, show trials are conducted to demonstrate to society
the attitude of the authorities to certain actions or phenomena
27
23
3. Yes, the judicial system is used for political ends, in order to harass
and get rid of political opponents
21
19
4. Yes, the judicial system is used to undermine business competitors,
to ruin their reputation or to capture their business
20
19
5. It might be used, but little is known about it
19
19
6. Yes, the judicial system is used to settle personal conflicts and for revenge
16
18
7. Even if it is so used, it serves the right purposes
3
2
8. No, the judicial system in Russia is not used for any unlawful purposes
4
4
A dismally low share of respondents associated the judicial system with the rule of law: only 4%
(3% in 2007) were convinced that the judicial system was not used for any unlawful purposes [8].
10
The remaining responses emphasized the misuse of law [2, 3] for political purposes (19% political
ends; 23% show trials), closely followed [4] by commercial purposes (19%) and [6] personal
purposes (18%). Almost one in five (19%) assumed that the judicial system could be used
manipulatively but lacked specific information [5].
These data show that no substantial change has taken place in the last three years, either in the
popular perception of these matters or in Russian citizens‘ distrust of institutions. They also point to
possible reasons for the ―legal nihilism‖ widely publicized by President Medvedev (Medvedev,
2008). It must be stressed that the spirit of ‗legal nihilism‘ relies on formal and outward
compliance with the law. This, in turn, produces informal practices based on an ―emphasis on the
letter of the law and the increasing expertise of players in its manipulation‖ (Ledeneva, 2006, p.
190). In other words, the law becomes an integral part of strategy in politics and business.
Statistics from the past decade show, on the one hand, more use being made of the courts but, on
the other hand, a rise in the incidence of corporate raiding and other ―legal‖ forms of capturing
businesses (Firestone 2008, 2010; Volkov 2004; Yakovlev 2006; Woodruff 2008; Biberman 2008).
It is also indicative that the positive trend in statistics and in modus operandi, especially in
arbitration courts (Hendley 2007), has not yet found expression in an overall respect for the law
and trust in legal institutions.17
Close examination of Tables 1 and 2 helps to uncover the multiple uses to which the judicial
system is put in Russia. The most disturbing finding, perhaps, is that only 4% of respondents
consistently say that the judicial system is not used for any unlawful purposes. This figure was
cross-checked in other questions concerning, respectively, the courts and the prosecutor‘s office.
17
See data on trust in courts.
11
Graph 1: Q. ―In your opinion, what, aside from the law, exerts the strongest influence on the work of
Russian courts and judges?‖ and Q. ―What, aside from the law, guides the activities of Russian
procurators (prosecutors) and what influences their actions?‖
Respondents were invited to make multiple choices
As Graph 1 illustrates, a comparable proportion of respondents (just under 7%) chose to say that
‗nothing but the law‘ influences the workings of the courts and the procurator‘s (prosecutors) office
in Russia. The 2010 data also show a range of unlawful incentives used to manipulate the
judiciary. Still, there are signs of some positive trends. Compared to the findings of our 2007
Survey the attributed influence exerted over judges by certain factors (personal gain, money, and
bribes) is perceived to have declined to 46% in 2010: in 2007 55% of respondents acknowledged
their significance. The use of personal connections and informal relationships has also decreased,
respondents say, from 47% to 41% while the influence of oral commands and other forms of
influence ―from above‖ has been reduced from 24% to 22%.
The factors which respondents saw as influencing the work of the prosecutor‘s office follow a
similar pattern. As selected by the general sample, 42% named bribery; 38% named informal
requests; and 29% singled out the status of opponents. One particular point of interest: the
response ―directives from above‖ came fourth in people‘s perceptions of other extra-legal factors of
influence on ―telephone justice‖ (22% for the courts, 24% for the prosecutor‘s office).
12
Graph 2. Differences in assessing pressure / influence on judges between those with,
and without, personal experience of the judicial system
Respondents were invited to make multiple choices
However, the findings of both the 2007 and 2010 surveys also suggest people‘s perception of the
behaviour of the prosecutor‘s office18 does have certain nuances. Judges were seen as more
corrupt and receptive to material stimuli. Prosecutors were considered more obedient and
responsive to directives from above, though the proportion holding the latter view has decreased
over the three intervening years from 28% to 24%.
If we contrast the opinions of those who rely on the media and hearsay with the views of individuals
who have had direct experience of the system (―as a litigant, plaintiff or defendant, a victim or a
suspect, a witness or a jury member etc.‖) the percentages in 2010 rise to 56% for bribery and 46%
for informal requests, but decrease to 26% for the status of opponents. Graph 2 shows that those
in Russia with personal exposure to the judicial system (14% of total respondents) seem to hold
18
The years from 2007 to 2010 saw certain potentially major changes in the functions and powers of the
prosecutor’s office (more correctly speaking, the procuracy). Its investigative activities, overseeing investigations
into more serious crimes and offences committed by officials (including the police), were given greater
departmental autonomy within the Prosecutor General’s Office in 2007 and then constituted in 2010 as an
independent agency, the Investigative Committee.
The office has retained its functions of oversight of law-enforcement by all agencies and prosecution in court. The
formal innovations of the past three years are still untried and as yet unlikely to have penetrated or in any way
altered public perceptions of the procuracy or prosecutor’s office.
13
more negative views about almost every type of influence to which a judge might be subjected,
from material interest to political pressure.
Overall the data from both surveys reveal the public to be aware of telephone justice – exercised
both through directives from above and informal requests – and those with direct experience of the
judicial system are more likely to believe in its existence. Low expectations of State institutions in
politics and business, as I have argued, lead over time to the proliferation of informal practices
(Ledeneva, 2006, p.26). This has created an additional incentive for cheating the State and placing
trust elsewhere. The same argument applies to the courts.
The most convincing evidence about ―telephone justice‖, however, comes from the judges
themselves and from experts. Increasingly such evidence can be found in official reports. ―Formally
speaking, judges are independent and must be guided solely by the law. In practice they do not
possess genuine, as opposed to declaratory, independence,‖ states the President‘s Advisory
Council on Civil Society and Human Rights. It continues
―... The powers of a judge who does not agree to carry out the requests may be prematurely
terminated, whether it is the court chairman or another influential person who indicates the
desired outcome of the case. In such a situation the conscientious judge finds himself (or
herself) open to pressure from within the judicial system and has no chance of defending
his or her own rights. As a result, fewer conscientious judges remain and their other
colleagues fear to cross the court chairman and take decisions based on the law. The
dependence of judges on officials within the judicial system is intensified. Our findings
show that the subordinate position of judges is deepened by a simulated combating of
violations, and the pretence of struggling against infringements of the law among judges. In
reality, under the guise of combating these infringements conscientious judges are being
expelled from the profession.‖
Similar conclusions were reached in a report commissioned by Moscow‘s Institute for
Contemporary Development and published in October 2009 by the Centre for Political Technologies
as ―The judicial system in Russia: its present condition and the issues it faces‖. Both reports have
been cited by Judge Kudeshkina to support her account of the pressure she experienced at the
hands of the Moscow City Court chairwoman.
Our 2010 Survey tested whether these whistle-blowing judges resonate with the public or are
viewed, on the contrary, as bitter and resentful at their loss of position. The survey data clearly
indicate that the elements of resentment attributed to such judges – desire for vengeance (10%) or
to compromise (6%) and slander (3%) their colleagues – are significantly outweighed by what is
seen as a loss of fear (36%), a shrugging off of dependence (or krugovaya poruka19) (30%) and
efforts to change (13%) or monitor (8%) the judicial system from the outside.
19
See Ledeneva 2004, Hosking 2004.
14
Table 3: ―In what way are court decisions in your locality most often made?‖
Respondents were invited to choose only one option
Prompts offered for this question
2007
2010
1. All, or practically all, court decisions are made in accordance with the law
12
12
2. There are judges who respond to bribes and pressure ―from above‖ but they
are few
18
19
3. Judges, as a rule, take bribes and respond to pressure ―from above‖,
but there are also principled judges
25
25
4. Even principled judges react to pressure ―from above‖ on certain cases
21
18
5. Practically all court decisions are taken for a bribe or under pressure ―from
above‖
7
6
6. Do not agree with any of these
17
21
Data from the 2010 Survey replicated trends noted in 2007. There has been a significant increase,
however, in the number of respondents who relate outspoken criticism by former judges to their
loss of fear (from 31% in 2007 to 36%). The latter trend may also be ascribed to the growing
intimidation of those opposed to the Russian central authorities, creating an atmosphere not only
induced by the Khodorkovsky case but also by recent acts of violence against journalists and civic
activists.
THE REGIONAL DIMENSION20
The survey data are more reliable, in all probability, when people are asked about events in their
locality. The Moscow controversy over the influence of city authorities on the city‘s courts is not
unique, as certain analyses confirm (Solov‘ev, 2007; Dobrovinski, 2002). Nevertheless one
assumes regional variation in Russia.
Table 3 shows the distribution of replies when respondents were asked how court decisions were
made in their locality. It included a further option [6] for those who disagreed with the suggested
formulae (respondents were asked to choose one response21).
20
In 2010 responses concerning the North Caucasus region were included under those for the Southern Federal
District although in January 2010 the region was transferred (with the Stavropol Region) out of the Southern
Federal District to constitute a separate North Caucasus Federal District
21
With the kind permission of the Director, I have used the Levada Centre’s data and archives on its surveys about
the Russian judicial system to expand a five-fold standard scale of unlawful pressures on judges that is measured in
frequency (never, sometimes, frequently, almost always, always) into five formulae that add an interpretative
element to the frequencies.
15
Approximately one third of respondents seemed satisfied with the workings of local courts: 12%
replied that all court decisions were made in accordance with the law, and 19% said only a few
judges take bribes and are subject to pressure [1, 2]. One half [3, 4, 5] of respondents, however,
acknowledged that judges were not independent and were influenced either by corrupt payments
or other forms of pressure.
A quarter of respondents said that judges, as a rule, take bribes although there were also some
principled judges [3]. Even these principled judges would react to pressure on certain cases, said
another 18% [4] while a further 6% of respondents [5] indicated that ―all court decision are taken
either for a bribe or under pressure ‗from above‘.‖ Slightly more than one in five respondents (21%)
did not agree [6] with any of the suggested choices.
Table 4: Q. ―In what way are court decisions in your locality most often made?‖
(by Federal Districts22)
Respondents were invited to make one choice
Prompts offered for this question
Average NW
C
So
V
U
Si
FE
1. All or practically all court decisions are
12
made in accordance with the law
1
8
12
17
12
12
30
2. There are judges who respond to
bribes and ―from above‖, but they are 19
few
14
19
18
25
13
18
15
3. Judges, as a rule, take bribes and
respond to pressure ―from above‖, but 25
there are also principled judges
23
27
28
18
23
26
27
4. Even principled judges react to
18
pressure ―from above‖ on certain cases
25
18
14
17
28
18
9
5. Practically all court decisions are
taken for a bribe or under pressure ―from 6
above‖
10
4
12
5
2
6
6
6. Do not agree with any of these
26
25
16
19
22
20
14
21
When we look at the 2010 Survey data regionally (Table 4), the curve of averages has not changed
significantly in comparison to 2007 (10-18-24-24-6-21%).23 Yet there were some striking
differences in data for two Federal Districts – the North Western and Far Eastern. In comparison to
22
23
Respectively, in Table 4, North Western, Central, South, Volga, Urals, Siberian and Far Eastern Federal Districts.
I do not include a complete set of 2007 data, they are available in full in (Ledeneva, 2008).
16
its 2007 curve (13-20-17-27-2-21%), the distribution of answers in North Western Federal District
indicates sharp deterioration (1-14-23-25-10-26%). Replies to the first prompt [1] that ―all or
practically all court decisions are made in accordance with the law‖ have gone down from 13% to
1% in North Western (also down from 13% to 8% in Central, from 15% to 12% in Urals and Siberian
Federal Districts). Responses in the Volga, South, and particularly in Far Eastern Federal Districts
went up: from 10% in 2007 to 17% in 2010 in Volga, from 10% to 12% in South, and from 14% in
2007 to impressive 30% in 2010 in Far Eastern Federal Districts. It can be argued, therefore, that
there were perceptions, respectively, of a significant or small improvement in the enforcement of
law. The North Western, Central and Far Eastern Federal Districts certainly displayed diverging
trends.
If we analyze the second prompt in Table 4 (―there are judges who take bribes and are subject to
pressure ‗from above‘ but they are few‖) the Volga Federal District (25%) registered above average,
while the Central Federal District matched the national response (19%) and the South and Siberian
Federal Districts at 18% measured just below average. Three other districts were a little less
confident about the prevalence of judicial bribe-taking: North Western (14%), Urals (13%), and Far
Eastern (15%). If we combine responses to the first and second prompts, the regional data range
from a low of 15% in the North Western Federal District to a high of 44% in the Far Eastern Federal
District as against a national average of 30%. (In 2007 the range was smaller and different regions
lay at the two extremes, from a low of 22% in the Southern Federal District to a high of 38% in the
Ural Federal District. The national average then was also 30%). Prompt 2 was the most popular
reply (25%) in the Volga Federal District and combined with prompt 1 gave a total of 42%. This was
still a little less than the Far Eastern Federal District, the part of Russia where people‘s responses
were consistently more optimistic than elsewhere – 30%, 15%, 27%, 9% and 6%, respectively, on
prompts 1 to 5. (In 2007 it was the Volga Federal District which displayed a similar trend.)
The third prompt (―judges, as a rule, take bribes and are subject to pressure ‗from above‘, but there
are also principled judges‖) was the most popular choice overall, selected by an average 25% of all
respondents. Among respondents in four of the country‘s main regions it did not come first. The
Urals Federal District scored highest (28%) on the fourth, even less optimistic, prompt (―even
principled judges react to the pressure ‗from above‘ on certain cases‖). So did the North Western
Federal District (25%).
The most pessimistic choice [5], indicating that practically all court decisions are taken for a bribe
or under pressure ―from above‖, was also the least popular (6% on average). No doubt, further
breakdown of data into the 83 constituent subjects of the Russian Federation would show yet more
extensive variation, as even neighbouring Regions (oblast, krai) often differ significantly in their
political regimes and models of governance.
Finally, when faced by an allegedly unfair sentence to their detriment, it is worthy of note that
respondents in 2010 displayed an increased distrust of independent agencies. The proportion who
would contact a lawyer for advice, for example, declined from 33% in 2007 to 23% in 2010. There
17
was a parallel growth, on the other hand, in the numbers who would make a complaint to a higher
court (from 14% to 22%).
CONCLUSION
The data of the 2010 Survey do not show substantial change in the trends that emerged in 2007,
with an exception of a number of intriguing regional dynamics. Notwithstanding a few encouraging
signs of improvement in the popular perception of the Russian judicial system, respondents still
consider patterns of extra-legal pressure on the judiciary to be widespread.
What is the relation between people‘s perceptions and the actual incidence of telephone justice? In
studying corruption in Russia Rose and Mishler demonstrated that perception was not a
satisfactory proxy for experience: they found a large discrepancy between 86% who perceived most
public officials as corrupt and the 23% who said their household had paid a bribe in the past two
years (Rose and Mishler, 2007, pp. 7-8).24 The ‗Life in Transition‘ surveys, conducted by the
European Bank for Reconstruction and Development, also noted a difference between indicators of
perception and experience.25 Perceptions are often criticized as influenced by the circulation of
information, locally or through the media, and by the perceived fairness of public officials (Miller,
Grodeland and Koshechkina, 2001, pp. 91, 279). Rose and Mishler found that neither the number
of bribes nor the number of contacts with public officials significantly affected the perception of
corruption. They made their case with regard to health, education, the police, social security and
permits office, army recruiting and tax inspection. They notably excluded the courts from their
study.
Conversely, our 2010 Survey indicated that people who have had personal exposure (14%) to the
courts are more critical than those with only mediated knowledge of the judicial system. This
finding needs further analysis. It would be useful to see whether the type of court (LambertMogiliansky, Sonin and Zhuravskaya 2007) or type of litigation matters (Volkov et al. 2011);
whether the experience in court differs in nature to the experience of other Russian public
institutions; or whether corruption in the courts is under-represented in the media. Given our data,
however, the perceptions of respondents with personal experience of the judicial system in Russia
back up the opinions of others, even if their perceptions may have been influenced by unfavourable
court decisions. The patterns of informality persist and require further study.
In 2007 I solicited comments on the survey from a range of experts – lawyers, human rights
activists, academics and public intellectuals. They largely agreed on the following formula: while it
24
Among the 86% of Russians who perceive public officials as corrupt, 35% believe almost all public officials to be
corrupt while 51% think that most officials are corrupt. One in ten (9%) say that less than half of officials are
corrupt; only 5% think that very few officials are corrupt. These perceptions are consistent with the opinion that
public officials are not trustworthy (Rose and Mishler, 2007, p. 11).
25
For comparison see CEELBAS website.
18
is ridiculous to suggest that every court case in Russia is decided according to directives from
above or on the basis of alternative incentives, it is perfectly possible to imagine that a way to
influence a particular case can be found if necessary. The pressure does not have to be pervasive to
be effective, in other words. The form of influence, moreover, can be tailored to suit the personality
of a judge. Court chairmen and women possess an arsenal of measures to deal with non-compliant
judges, and can twist their personal integrity in a calculating way. Direct forms of influence may
even be redundant when an atmosphere of ―suspended punishment‖ creates patterns of
dependence on the courts‘ chairmen and women, and induces self-censorship, the need to play by
―unwritten rules.‖
In 2007 none of the acting judges I approached to provide a commentary on the data would agree
to do so. In 2010 there is enough evidence in the public domain from judges to confirm the
importance of such inquiries. Both the 2007 and 2010 Surveys indicate low public competence in
dealing with judicial issues. Such competence is essential for the dynamics of contemporary
Russian politics and becomes increasingly relevant as Russia becomes more integrated into a
global legal sphere.26
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22